Illinois Law as it relates to Incompetency | marygsykes

During the Marg G Sykes Hearing on July 6, 2012, Dr Shaw endlessly ranted on about his version of the term competency. He continuously justified his reasons for declaring Mary Sykes incompetent. Here is a very articulate and well written article written by Ken that demonstrates why this is just all wrong!

PROOF OF INCOMPETENCY

1. Statute:

Currentness

? 11a-3. Adjudication of disability; Power to appoint guardian.

(a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person, but only if it has been demonstrated by clear and convincing evidence that the person is a disabled person as defined in Section 11a-2. NB NOTE THE STANDARD OF PROOF SET BY THE STATUTE. This does not allow for Mr. Stern, Ms Farenga, et al .to make an agreement to allow for the appointment of their favorite as the plenary guardian. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual?s actual mental, physical and adaptive limitations. NB. As Mary Sykes passed a written examination that was administered by the Secretary of State shortly before the petition was filed ? the total deprivation of her privileges and immunities was not authorized by statute. IL ST CH 755 ? 5/11a-3

2. Procedure:

A petition for the appointment of a guardian of the estate or of the person, or both, of a disabled person may be filed by any reputable person or by the disabled person himself or herself.1 The petition must state, if known or reasonably ascertainable:

? the relationship and interest of the petitioner to the respondent;2
? the name, date of birth, and place of residence of the respondent;3
? the reasons for the guardianship;4
? the name and post office address of the respondent?s guardian, if any;5 or of the respondent?s agent or agents appointed under the Illinois Power of Attorney Act;6
? the names and post office addresses of the nearest relatives of the respondent, in the following order:
1. the spouse, adult children, parents, and adult siblings, if any, if none;
2. the nearest adult kindred known to the petitioner;7 See: In re: Sodini The Courts have ruled this jurisdictional and in particular this prevents the railroading of a vulnerable person into bondage. Having the family know about the proceedings and having 14 days to prepare they can obtain counsel and address the fact that the person appointed as plenary guardian by the agreement of Mr. Stern, Ms. Farenga et al was the very person may sought a protective order against.
? the name and address of the person with whom, or the facility in which, the respondent is residing;8
? the approximate value of the personal property and real estate;9
? the amount of the anticipated annual gross income and other receipts;10
? the name, post office address, and, in case of an individual, the age and occupation of the proposed guardian and his or her relationship to the respondent.11

In addition, if the petition seeks the appointment of a previously appointed standby guardian as guardian of the disabled person, the petition must also state:

? the facts concerning the standby guardian?s previous appointment;12 NB. Again the disabled person is protected from a lazy court, or lazy guardian ad litem, or just momentum. Obviously this requirement was ignored in the appointment of CT as plenary guardian. and
? the date of death of the disabled person?s guardian or the facts concerning the consent of the disabled person?s guardian to the appointment of the standby guardian as guardian, or the willingness and ability of the disabled person?s guardian to make and carry out day-to-day care decisions concerning the disabled person.13

A notary public?s failure to sign the jurat on a verification of the petition for guardianship of a disabled person, does not deprive the court of jurisdiction to approve a report of the sale of the disabled person?s real estate, where the notary public administered an oath to the petitioner, and the notary seal and the petitioner?s signature were on the petition.14

Westlaw. ? 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes

1

755 ILCS 5/11a-3(a).

A person with a financial interest in having an individual determined to be disabled and in having a guardianship created is not precluded from serving as a petitioner in a guardianship proceeding. See In re Betts, 109 Ill. 2d 154, 92 Ill. Dec. 838, 485 N.E.2d 1081 (1985).

2

755 ILCS 5/11a-8(a).

3

755 ILCS 5/11a-8(b).

4

755 ILCS 5/11a-8(c).

5

755 ILCS 5/11a-8(d).

6

755 ILCS 45/1-1 et seq.

7

755 ILCS 5/11a-8(e).

8

755 ILCS 5/11a-8(f).

9

755 ILCS 5/11a-8(g).

10

755 ILCS 5/11a-8(h).

11

755 ILCS 5/11a-8(i).

12

755 ILCS 5/11a-8(j).

13

755 ILCS 5/11a-8(k).

14

In re Devereux?s Estate, 63 Ill. App. 2d 1, 211 N.E.2d 19 (1st Dist. 1965). 2 Horner Probate Prac. & Estates ? 35:8

5/11a-10. Procedures preliminary to hearing

Currentness

? 11a-10. Procedures preliminary to hearing.

(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to report to the court concerning the respondent?s best interests consistent with the provisions of this Section, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. If the guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration, depending on the type of disability that is alleged in the petition. The court may allow the guardian ad litem reasonable compensation. The guardian ad litem may consult with a person who by training or experience is qualified to work with persons with a developmental disability, persons with mental illness, or physically disabled persons, or persons disabled because of mental deterioration, depending on the type of disability that is alleged. The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights under Section 11a-11. The guardian ad litem shall also attempt to elicit the respondent?s position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court. NB Mary appeared in Court and vigorously objected to the guardianship. She filed complaints with the Illinois Department of aging, and others. Mr. Stern made statements directly contradictory to the expressions of Mary Sykes ? Documents have surfaced ? I presented them and Gloria Sykes presented them that contradict Ms. Stern?s representations.l complaints to the ARDC have fallen on deaf ears ? in fact it appears that making these very complaints have resulted in disciplinary proceedings being brought against me. Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent which the guardian ad litem deems necessary, provided that the information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquires detailed in this Section, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report.

(b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent?s request or if the respondent takes a position adverse to that of the guardian ad litem. NB.Mary has made numerous requests for representation that have been ignored. Interestingly it appears that Stern has on several occasions informed the Court that Mary does not want an attorney. As Mary has made her requests in writing and these requests are part of the record ? Mr. Stern?s credibility is sharply in doubt. Once again the actions of Stern and Farenga were reported to the ARDC and fell on deaf ears. The conflict between the GALs and Mary Sykes is legend. The record is replete with breaches of fiduciary relationship ? focus on one fact ? ?why are there two GALs in this Estate?? Now focus on the unbridled and unfounded verbal and written attacks by the GALs (and especially Farenga) on the younger daughter of Mary. Why has Mary?s younger sister been isolated from Mary Sykes. Prior to these events the two were literally joined at the hip! the respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation.NB. Gloria Sykes has pointed out that the service on Mary was quite interesting. The Sheriff of Cook County was directed by the applicant for plenary guardian to serve Mary in Chicago ? however, the applicant had taken Mary to DuPage County. The applicant (CT) made many attempts to get Mary?s doctor to give her a certificate of incompetency for Mary, but her refused. In August 2009 the transcript of proceedings reveals the Court advising CT to fine a more cooperative doctor ? she did an Mary received bench service. Ms. Sykes in her investigation determined that the required warnings had not been give Mary Sykes. WHAT IS MOST DISTURBING IS THE FACT THAT EVERY ATTORNEY WHO HAS LOOKED INTO THIS CASE HAS BEEN SUBJECTED TO HARASSMENT. (I will not reiterate what has befallen me!)

(c) If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent?s estate may be unable to pay. However, in cases where the Office of State Guardian is the petitioner, consistent with Section 30 of the Guardianship and Advocacy Act,1where an elder abuse provider agency is the petitioner, pursuant to Section 9 of the Elder Abuse and Neglect Act,2 or where the Department of Human Services Office of Inspector General is the petitioner, consistent with Section 45 of the Abuse of Adults with Disabilities Intervention Act, no guardian ad litem or legal fees shall be assessed against the Office of State Guardian, the elder abuse provider agency, or the Department of Human Services Office of Inspector General.

(d) The hearing may be held at such convenient place as the court directs, including at a facility in which the respondent resides.

(e) Unless he is the petitioner, the respondent shall be personally served with a copy of the petition and a summons not less than 14 days before the hearing. The summons shall be printed in large, bold type and shall include the following notice:

NOTICE OF RIGHTS OF RESPONDENT

You have been named as a respondent in a guardianship petition asking that you be declared a disabled person. If the court grants the petition, a guardian will be appointed for you. A copy of the guardianship petition is attached for your convenience.

The date and time of the hearing are:

The place where the hearing will occur is:

The Judge?s name and phone number is:

If a guardian is appointed for you, the guardian may be given the right to make all important personal decisions for you, such as where you may live, what medical treatment you may receive, what places you may visit, and who may visit you. A guardian may also be given the right to control and manage your money and other property, including your home, if you own one. You may lose the right to make these decisions for yourself.

You have the following legal rights:

(1) You have the right to be present at the court hearing.

(2) You have the right to be represented by a lawyer, either one that you retain, or one appointed by the Judge.

(3) You have the right to ask for a jury of six persons to hear your case.

(4) You have the right to present evidence to the court and to confront and cross-examine witnesses.

(5) You have the right to ask the Judge to appoint an independent expert to examine you and give an opinion about your need for a guardian.

(6) You have the right to ask that the court hearing be closed to the public.

(7) You have the right to tell the court whom you prefer to have for your guardian.

You do not have to attend the court hearing if you do not want to be there. If you do not attend, the Judge may appoint a guardian if the Judge finds that a guardian would be of benefit to you. The hearing will not be postponed or canceled if you do not attend.

IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE JUDGE.NB the transcripts reveal that Mary asked for many of these rights and others asked for these right for Mary; however, they were totally ignored. This appears to be a pattern.

Service of summons and the petition may be made by a private person 18 years of age or over who is not a party to the action.

(f) Notice of the time and place of the hearing shall be given by the petitioner by mail or in person to those persons, including the proposed guardian, whose names and addresses appear in the petition and who do not waive notice, not less than 14 days before the hearing.
Credits

P.A. 79-328, ? 11a-10, added by P.A. 80-1415, ? 1, eff. Jan. 1, 1979. Amended by P.A. 81-795, ? 1, eff. Sept. 16, 1979; P.A. 82-534, ? 1, eff. Sept. 16, 1981; P.A. 88-380, ? 135, eff. Aug. 20, 1993; P.A. 89-396, ? 15, eff. Aug. 20, 1995; P.A. 90-628, ? 25, eff. Jan. 1, 1999; P.A. 95-373, ? 5, eff. Aug. 23, 2007; P.A. 96-1052, ? 5, eff. July 14, 2010; P.A. 97-375, ? 15, eff. Aug. 15, 2011.

Formerly Ill.Rev.Stat.1991, ch. 110 ?, ? 11a-10.

Relevant Notes of Decisions (41)

View all 65

Notes of Decisions listed below contain your search terms.

Guardian ad litem?In general

A guardian ad litem is not required after a hearing on a mentally disabled adult?s competence or after a plenary guardian of the person is appointed. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol ? 488

If the juvenile court is going to appoint a guardian ad litem for a mentally-disabled-adult parent that is a party to a proceeding for termination of parental rights, the appointment should be made pursuant to the Probate Act. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Infants Description: Key Number Symbol ? 205; Mental Health Description: Key Number Symbol ? 487

Guardian ad litem appointed to represent incapacitated adult represents ward?s best interests, rather than ward; guardian ad litem is only required prior to hearing on ward?s competence, although guardian ad litem or next friend may be appointed to represent ward?s interests in subsequent litigation. In re Guardianship of Mabry, App. 4 Dist.1996, 216 Ill.Dec. 848, 281 Ill.App.3d 76, 666 N.E.2d 16, rehearing denied. Mental Health Description: Key Number Symbol ? 133; Mental Health Description: Key Number Symbol ? 485.1; Mental Health Description: Key Number Symbol ? 495

Circuit court is charged with duty to protect interests of ward and has, by statute and otherwise, those powers necessary to appoint guardian ad litem to represent interests of ward during court?s exercise of its jurisdiction. In re Serafin, App. 2 Dist.1995, 208 Ill.Dec. 612, 272 Ill.App.3d 239, 649 N.E.2d 972. Mental Health Description: Key Number Symbol ? 471; Mental Health Description: Key Number Symbol ? 487

Attorney?s failure to bring to trial court?s attention conflict in her dual roles as mentally disabled patient?s attorney and guardian resulting from patient?s request to represent herself, which required trial court to consult with guardian to determine whether patient should be allowed to represent herself, could not relieve court of its responsibility for making required appointment of guardian to protect patient?s interest. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133

If patient has already been involuntarily committed as mentally ill and danger to himself or others, court considering whether to appoint guardian must presume that patient is not capable of protecting patient?s interests. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 135

Statute governing appointment of guardian ad litem requires court to appoint guardian ad litem unless court has grounds for finding that guardian is not needed. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133

Trial court committed reversible error when it failed to appoint separate guardian ad litem to protect interests of mentally disabled patient once patient asserted right to proceed without assistance of counsel; trial court needed guardian ad litem to help determine whether to appoint counsel for patient against patent?s wishes. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133; Mental Health Description: Key Number Symbol ? 156

Individual adjudicated disabled adult for whom guardian was appointed as result of petition by his mother was not deprived of his rights by entry of original guardianship order despite lack of compliance with statutorily mandated requirements applicable to disability adjudication including lack of medical report describing nature and extent of individual?s physical and mental disability and presence of individual or representation by guardian ad litem or other counsel at hearing, where there was no contention that individual was not disabled adult under definition of Probate Act and court implemented measures for individual?s protection as result of petition. In re Estate of Steinfeld, 1994, 196 Ill.Dec. 636, 158 Ill.2d 1, 630 N.E.2d 801, certiorari denied 115 S.Ct. 59, 513 U.S. 809, 130 L.Ed.2d 17. Mental Health Description: Key Number Symbol ? 156

Even under ch. 110, ? 54 providing that if party is declared incompetent prosecution or defense shall be maintained by party?s representative, guardian ad litem or next friend, it is not reversible error to fail to appoint guardian ad litem for one for whom actual incompetence has not been formally so adjudged. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol ? 496

Court before which action was brought for specific performance of contract for purchase of house owned by 85-year-old woman, although it was not required to appoint guardian ad litem for defendant houseowner, was under the circumstances within its power in doing so. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol ? 487

Appointment of guardian ad litem to act as representative for party in need of such representation is procedural and not jurisdictional matter. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol ? 488

n.b. Where circuit court on appeal from probate court adjudged alleged incompetent to be competent, probate court could not thereafter hold attorney for alleged incompetent in civil contempt of court for disobedience of orders previously entered by probate court concerning inquiry into mental condition of alleged incompetent or for assisting in denying guardian ad litem free access to alleged incompetent or assisting alleged incompetent to avoid service of process in connection with incompetency proceeding. In re Pine?s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Contempt Description: Key Number Symbol ? 49

In considering appointment of a guardian ad litem, the question to be determined is the capacity of the person whose fitness is challenged to intelligently choose counsel and consult and advise with him in conduct of litigation, or capacity to manage and care for the particular business or matter involved. In re Pine?s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol ? 488

Generally, there should be no conflicting interest between alleged incompetent and the party representing him as guardian ad litem. In re Pine?s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol ? 492

Where proceeding to have an elderly woman declared incompetent was commenced by principal beneficiary under her will in order to prevent her from conveying her property to another, probate court should proceed with extreme caution in exercise of discretion to appoint a guardian ad litem to represent alleged incompetent and only after notice to alleged incompetent. In re Pine?s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol ? 133

Circuit court did not abuse its discretion in failing to appoint a guardian ad litem to represent alleged incompetent in proceeding for appointment of a conservator, where alleged incompetent was aware of nature of proceeding and possessed sufficient judgment to select his own counsel to defend his interests. Rankin v. Rankin, App.1944, 54 N.E.2d 58, 322 Ill.App. 90. Mental Health Description: Key Number Symbol ? 133

Where there has not been a judgment fixing mental status of one of parties to a proceeding alleged to be incompetent, court has power to determine all facts essential to a proper adjudication upon need for a guardian ad litem for such party. Cowdery v. Northern Trust Co., App.1944, 53 N.E.2d 43, 321 Ill.App. 243. Mental Health Description: Key Number Symbol ? 490

?- Compensation, guardian ad litem

Circuit Court retained authority to award guardianship fees to public guardian who was appointed as temporary guardian for disabled ward, and to ward?s guardian ad litem, even after ward?s death terminated the guardianship; Probate Act explicitly provided for the award of reasonable fees for temporary guardians and guardians ad litem, and nothing in the statutes terminating a guardian?s authority to act for the ward upon the ward?s death deprived the court of power to award fees after the ward?s death. In re Estate of Pellico, App. 2 Dist.2009, 334 Ill.Dec. 12, 394 Ill.App.3d 1052, 916 N.E.2d 45. Mental Health Description: Key Number Symbol ? 180.1; Mental Health Description: Key Number Symbol ? 493

Statute on payment of guardian ad litem?s fee in proceeding to appoint guardian for disabled adult clearly expresses that court may assess guardian ad litem fees only against respondent or his or her estate or, in event respondent is unable to pay, against petitioner. In re Estate of Bishop, App. 2 Dist.2002, 268 Ill.Dec. 136, 333 Ill.App.3d 1113, 777 N.E.2d 1059. Mental Health Description: Key Number Symbol ? 493

Son who filed counter petition in daughters? proceeding to appoint guardian for their mother, in which son asked that mother not be adjudicated disabled or, in alternative, that son be named her guardian, was ?petitioner? for purposes of statute on payment of fees of guardian ad litem by petitioner if respondent is unable to pay; initial petition was filed by daughters, but son inserted himself in matter by filing counter petition and created issues to which guardian ad litem had to respond, namely, whether son should be appointed guardian. In re Estate of Bishop, App. 2 Dist.2002, 268 Ill.Dec. 136, 333 Ill.App.3d 1113, 777 N.E.2d 1059. Mental Health Description: Key Number Symbol ? 493

Trial court had statutory authority to tax temporary guardian ad litem fees against ward, where court appointed attorney and temporary guardian ad litem to represent ward in proceeding, there was no finding that appointment of guardian ad litem was not necessary, and court determined that ward was able to pay fees, even though there was never finding that ward was disabled, petitioners never sought hearing on petition for appointment of permanent guardian, and case was dismissed for want of prosecution. In re Serafin, App. 2 Dist.1995, 208 Ill.Dec. 612, 272 Ill.App.3d 239, 649 N.E.2d 972. Mental Health Description: Key Number Symbol ? 158.1

Trial court?s conclusion that disabled adult for whom guardian ad litem was appointed, after adult had refused to consent to surgery, would not pay fees was reasonable, for purpose of determining whether guardian ad litem should be allowed fees, where no one affiliated with hospital or with suit had any contact with adult after she was released from hospital. In re Estate of Stoica, App. 1 Dist.1990, 148 Ill.Dec. 555, 203 Ill.App.3d 225, 560 N.E.2d 1152. Mental Health Description: Key Number Symbol ? 493

Implicit in each probate act section providing for taxation of costs is necessity for appointment of both guardian of estate of disabled person and guardian ad litem, and where petition forappointment of permanent guardian was dismissed after hearing and private counsel had appeared on behalf of allegedly disabled adult as soon as notice was received of pending hearing on guardianship, relevant provisions of Probate Act furnished no justification for taxation of guardian ad litem and temporary guardian costs to subject of the petition. In Interest of Prior, App. 3 Dist.1983, 72 Ill.Dec. 423, 116 Ill.App.3d 666, 452 N.E.2d 676. Mental Health Description: Key Number Symbol ? 158.1

Where guardian ad litem had been allowed fee in circuit court for his services as guardian ad litem of incompetent, and Appellate Court was without knowledge of fees customarily charged by members of bar of county where action was brought, and parties did not present evidence on nature and extent of services performed and value thereof, it was proper that award of fee for guardian ad litem on appeal be fixed by circuit court, and Appellate Court would remand cause to circuit court to determine fee on appeal. Cain v. Hougham, App.1969, 116 Ill.App.2d 439, 253 N.E.2d 137. Mental HealthDescription: Key Number Symbol ? 493

Self-representation

Evidence that mentally disabled patient was totally without understanding or capacity to make responsible decisions concerning her person or her assets required trial court to reverse its prior decision to allow patient to represent herself, absent strong evidence that appointment of counsel was not in patient?s best interest. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133 NB This case points out the conflict that the Court GALs and the Guardians must face. Whenever confronted by any member of the public or Mary herself seeking to assert the statutory and Constitutional Rights the mantra is Mary said she does not want ****(you fill in the blanks). The Court accepts the statement ? but, if Mary is indeed incompetent then the rights have to be asserted because she is unable to decide for herself as to whether or not it is in her best interests to waive rights. By not holding the actual hearings that are required by statute and applying the proper standards basic civil rights of the elderly are being ignored. Essentially a Soviet style Gulag has been promulgated. As a matter of law, the court and its appointee have entered into a conspiracy to violate the First, Fifth, Thirteenth, and Fourteenth Amendments to the United States Constittion. As these actions are ultra vires, the question of immunity is off the table. The Nuerenberg Trials settled this argument.

Counsel

If the guardian ad litem (GAL) for a mentally disabled ward in a probate proceeding and the ward are in agreement, the GAL does in effect represent the ward; however, the court must appoint separate counsel if the ward requests it or if the ward and the GAL take different positions. In re Mark W., App. 1 Dist.2006, 2006 WL 1667495, opinion withdrawn, opinion modified and superseded 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol ? 491 NB The Administration of the programs designed to protect the senior citizen from abuse and exploitatin have demonstrated in not only Sykes, but nationally that the patently untrue statement of the GAL or other appointed person is consider as gosspel

In probate proceedings, if the guardian ad litem and the ward are in agreement, the guardian does in effect represent the ward; however, the court must appoint separate counsel if the ward requests it or if the ward and guardian take different positions. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol? 495The words of the Mark case appear to be mandatory ? but ****

Court could appoint counsel for mentally disabled patient who did not request counsel and who took no position adverse to counsel only if it found that appointment was in patient?s best interests. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133

Court could appoint attorney but no guardian ad litem for mentally disabled patient based on determination that attorney could provide protection that would otherwise be guardian?s responsibility, although this required attorney to act as both guardian ad litem and as attorney. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol ? 133

Respondent in proceeding to have him declared incompetent has the right to retain his own attorney. In re Pine?s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol ? 133

Service of process

Constructive service on person domiciled within state, but located outside borders thereof, held not to give jurisdiction in proceeding in personam for declaration of incompetency and appointmentof conservator for person. McCormick v. Blaine, 1931, 178 N.E. 195, 345 Ill. 461. Mental Health Description: Key Number Symbol ? 131

Notice

Allegedly disabled adult received reasonable notice of hearing at which petition to appoint public guardian for him would be heard and opportunity to be heard during that proceeding, thus satisfying federal due process; summons and copy of petition were personally served, summons supported conclusion that he was given reasonable notice of hearing, which in turn gave him opportunity to be heard, and he had no known living spouse or adult kindred. Young v. Murphy, N.D. Ill.1995, 883 F.Supp. 256, reconsideration denied 161 F.R.D. 61. Constitutional Law Description: Key Number Symbol ? 4339; Mental Health Description: Key Number Symbol ? 130

In an original guardianship proceeding, the nearest living relatives of the alleged disabled adult must be given notice, and failure to give notice to such relatives is a jurisdictional defect requiring vacation of the order appointing a guardian. In re Estate of Debevec, App. 5 Dist.1990, 142 Ill.Dec. 302, 195 Ill.App.3d 891, 552 N.E.2d 1043. Guardian And Ward Description: Key Number Symbol ? 13(3) Matter of Sodini, App. 4 Dist.1988, 123 Ill.Dec. 67, 172 Ill.App.3d 1055, 527 N.E.2d 530.

Notice to one alleged to be incompetent and his/her close relatives is required before he may be adjudged incompetent and a conservator appointed for him. Matter of Sodini, App. 4 Dist.1988, 123 Ill.Dec. 67, 172 Ill.App.3d 1055, 527 N.E.2d 530. Mental Health Description: Key Number Symbol? 128 (notice must be 14 days prior) NB in Illinois like most States the lower Courts are obligated to take direction from the Courts of last resort. as the Appellate Court has ruled that the notice to the close relatives is jurisdictional it is very difficult to rationalize the fact that the close relatives were not afforded notice and Stern, Farenga, Schmiedel continue to act under color of statute to keep Mary Sykes in bondage, not report the dissipation of approximately a million dollars of her assets, isolate her from her friends, family and activities and deny her liberty, property, civil right and human rights. What is also most disturbing is the number of times that Mary Sykes has been rushed to the Emergency Room. Last December she was neglected and lost 10% of her body weight.

Failure of son and granddaughter of woman, in their petition to have woman adjudicated incompetent and to be appointed conservators of her estate, to give notice of time and place of hearing on the petition to other son of woman did not result in fraud upon the court concerning woman?s need for a conservator or petitioners? qualifications to serve in that capacity. In re Neuf?s Estate, App. 5 Dist.1980, 40 Ill.Dec. 704, 85 Ill.App.3d 468, 406 N.E.2d 907. Mental Health Description: Key Number Symbol ? 129

Authority of court

The trial court exceeded its authority when it sua sponte appointed a guardian ad litem for two adult former foster children, who had allegedly suffered permanent and severe physical and psychological injury as a result of sexual abuse by their foster fathers, over the objection of the former foster children and their attorney; the trial court never held a competency hearing or declared that former foster children were incompetent or disabled, the doctrine of parens patriae did not apply since former foster children were competent adults, and the trial court failed to comply with the provisions of the Probate Act for appointing a guardian. J.H. v. Ada S. McKinley Community Services, Inc., App. 1 Dist.2006, 308 Ill.Dec. 255, 369 Ill.App.3d 803, 861 N.E.2d 320. Infants Description: Key Number Symbol ? 1238(1); Infants Description: Key Number Symbol ? 1240(1); Mental Health Description: Key Number Symbol ? 487; Mental Health Description: Key Number Symbol ? 490

Hearings

Statute setting out preliminary procedures for appointment of guardians for disabled adults and providing that hearings were to be held within 30 days of filing of petition was directory, rather than mandatory, and thus failure of trial court to hold hearing within 30 days of filing of petition by son and son-in-law seeking guardianship of mother did not void court?s guardianship order;NB. Time constraints are irrelevant when the object of the guardians are involved. They only apply to limit the objectors (i.e. ordinary citizens exercising their First Amendment Rights) statute did not contain any negative language or provide any sanction or other consequences for failure to conduct hearing within 30 days of filing of petition, and rights of mother would not be injuriously affected by the fact that hearing was not held within statutory time period. (Per McCullough, J., with one justice specially concurring.) In re Estate of Doyle, App. 4 Dist.2005, 297 Ill.Dec. 868, 362 Ill.App.3d 293, 838 N.E.2d 355, rehearing denied, appeal denied 303 Ill.Dec. 2, 218 Ill.2d 539, 850 N.E.2d 807. Mental Health Description: Key Number Symbol ? 137.1
Footnotes

1 20 ILCS 3955/30.

2 320 ILCS 20/9. 755 I.L.C.S. 5/11a-10, IL ST CH 755 ? 5/11a-10

Current through P.A. 97-704 of the 2012 Reg. Sess.

IL ST CH 755 ? 5/11a-10

Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person, but only if it has been demonstrated by clear and convincing evidence that the person is a disabled person as defined in Section 11a-2. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate. 755 ILCS 5/11a-3(a).

Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual?s actual mental, physical and adaptive limitations. 755 ILCS 5/11a-3(b).NB: This is a sticking point. A guardianship is not an all or nothing thing. If the Court finds that I am a spendthrift that does not mean that I have to have permission of the plenary guardian to attend the church of my whim and desire or to eat drink and be merry to the full extent of my allowance. The guardian is a ?crutch? not a Dominique.

There is a clear distinction between a proceeding to adjudge a person mentally ill and one to adjudge him incompetent. The former relates to an inquiry and determination as to the condition of his mind without special reference to his property. The latter relates to an inquiry and determination as to his habits regarding his disposition to spend, waste or lessen his estate. It is not necessary to find a person to be mentally ill and totally lacking in capacity to manage his affairs. A mild form of mental illness may make a person highly susceptible to certain emotional appeals and incapable of making rational decisions concerning the disposition of his income or his estate. This could constitute waste of his estate and subject him to want and suffering even though the objects of his bounty may be engaged in worthwhile spiritual or religious activities. The test is incapability to manage one?s own affairs so that waste and suffering are inevitable. A person who wanted to liquidate his entire estate and give it to ?Christ is the Answer? may properly be found to be incompetent and a conservator appointed. Matter of Langford?s Estate, 50 Ill. App. 3d 623, 7 Ill. Dec. 574, 364 N.E.2d 735 (4th Dist. 1977).

One?s ability to manage his person does not resolve itself upon the question of whether the individual can accomplish tasks without assistance but rather whether the individual has the capability to take care and intelligently direct that all his needs are met through whatever device is reasonably available under the circumstances. Some of the actions which indicate the ability to care for one?s own needs include the appointment of an attorney-in-fact and the selection of a nursing home. The unsubstantiated opinions of witnesses that a person was not capable of taking care of himself or his affairs, without any reasons given for such conclusions will not support an adjudication of incompetency. Matter of McPeak?s Estate, 53 Ill. App. 3d 133, 11 Ill. Dec. 349, 368 N.E.2d 957 (5th Dist. 1977).

The extremes that reviewing courts will go to uphold the order of the trial court refusing to appoint a guardian for the estate and person is Galvin?s Estate v. Galvin, 112 Ill. App. 3d 677, 68 Ill. Dec. 370, 445 N.E.2d 1223 (1st Dist. 1983), wherein the alleged incompetent had strokes, had a pet black widow spider, believed he could fire by pointing his finger, and that he was a coworker with the Shah of Iran.

Although a person may be disabled in the statutory sense of not being fully able to manage her person, a guardian of her person is not permissible or appropriate if that person is capable of making and communicating responsible decisions concerning the care of her person, even though the appointment of a guardian of her estate is appropriate. The adjudication of disability is a uniquely factual determination. It is to be made by the trial court. It is not to be disturbed upon review unless the trial court?s findings are against the manifest weight of the evidence. In re Estate of Hickman, 208 Ill. App. 3d 265, 153 Ill. Dec. 31, 566 N.E.2d 881 (4th Dist. 1991).

20 Ill. Prac., Estate Planning & Admin. ? 279:4 (4th ed.)

? 35:4. Appointment

After compliance with statutory procedures regarding a hearing and notice to the respondent, a court must appoint a plenary guardian of the person or the estate, or both, of one adjudged to be a disabled person if the court finds that limited guardianship will not provide sufficient protection for the disabled person, his or her estate, or both.1 A plenary guardian is one who has the general care and control of the person and estate of a ward.2 A guardian may also be appointed for a limited purpose if the court finds that guardianship is necessary for the protection of the disabled person, his or her estate, or both.3 The guardian of the estate of a ward need not participate in or review the prosecution of an action on behalf of the ward where the attorney?s fees will be determined solely on a contingency basis.4

The justification for the appointment of a guardian is founded primarily on the incapability of managing one?s person or estate, and not on the cause of that incapability.5 The purpose ofappointing a guardian for a disabled person is to protect that person from personally wasting his or her estate or allowing others to do so.6 The question is not whether the person can accomplish specific tasks, but rather whether the person has the capability to take care of himself or herself, or intelligently direct that his or her needs are met through whatever device is reasonably available under the circumstances.7 It is not imperfection of mentality per se which justifies the appointment of a guardian, but rather the inability to manage one?s person or estate due to that imperfection of mentality.8 Thus, a trial court errs when it appoints a guardian over the respondent?s person after adjudicating the respondent a disabled person within the meaning of the Probate Act of 1975 where the respondent is able to manage his or her own person, even though the respondent?s lifestyle is eccentric.9

Where the court has the statutory authority to adjudicate a person as a disabled person and to appoint a guardian, the court?s failure to follow the statutory procedure in making the adjudication could render the order voidable.10 However, the failure to follow statutory requisites does not render the order void from the outset.11
Footnotes

1

755 ILCS 5/11a-12(b).

In re Estate of Steinfeld, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994) (sibling had standing to challenge disability and guardianship order).

2

In re Estate of Byrd, 227 Ill. App. 3d 632, 169 Ill. Dec. 772, 592 N.E.2d 259 (1st Dist. 1992).

3

In re Guardianship of Austin, 245 Ill. App. 3d 1042, 185 Ill. Dec. 852, 615 N.E.2d 411 (4th Dist. 1993).

Appointment of a limited guardian restricted to the investment of the respondent?s inheritance is proper, where the respondent does not lack all capacity to understand or manage day-to-day financial needs. Estate of Barr, 142 Ill. App. 3d 428, 96 Ill. Dec. 781, 491 N.E.2d 1241 (1st Dist. 1986).

4

755 ILCS 5/11a-18(c).

5

In re Stevenson?s Estate, 44 Ill. 2d 525, 256 N.E.2d 766 (1970).

6

Matter of Estate of Kutchins, 169 Ill. App. 3d 641, 120 Ill. Dec. 114, 523 N.E.2d 1025 (1st Dist. 1988).

7

See Matter of McPeak?s Estate, 53 Ill. App. 3d 133, 11 Ill. Dec. 349, 368 N.E.2d 957 (5th Dist. 1977); In re Dunning, 211 Ill. App. 633, 1918 WL 1982 (2d Dist. 1918), Leefers v. People ex rel. Leefers, 123 Ill. App. 634, 1906 WL 1592 (3d Dist. 1906).

8

In re Stevenson?s Estate, 44 Ill. 2d 525, 256 N.E.2d 766 (1970); Galvin?s Estate v. Galvin, 112 Ill. App. 3d 677, 68 Ill. Dec. 370, 445 N.E.2d 1223 (1st Dist. 1983).

9

Estate of Barr, 142 Ill. App. 3d 428, 96 Ill. Dec. 781, 491 N.E.2d 1241 (1st Dist. 1986).

10

Estate of Steinfeld, 233 Ill. App. 3d 715, 175 Ill. Dec. 12, 599 N.E.2d 1026 (1st Dist. 1992), judgment aff?d in part, rev?d in part on other grounds, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994).

11

Estate of Steinfeld, 233 Ill. App. 3d 715, 175 Ill. Dec. 12, 599 N.E.2d 1026 (1st Dist. 1992), judgment aff?d in part, rev?d in part, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994).

2 Horner Probate Prac. & Estates ? 35:4

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